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2013-07 ORDINANCE NO. 2013-07 AN ORDINANCE TO PROVIDE FOR THE GRANT BY THE CITY OF FAIRFAX, VIRGINIA, TO A PERSON OR PERSONS, OR TO A CORPORATION, ITS SUCCESSORS AND ASSIGNS, HEREAFTER TO BE ASCERTAINED IN THE MODE PRESCRIBED BY LAW, OF THE RIGHT,FOR THE TERM AND UPON THE CONDITIONS HEREIN STATED, TO OCCUPY AND USE THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF FAIRFAX, VIRGINIA WITHIN ITS CORPORATE LIMITS TO INSTALL, MAINTAIN, UPGRADE, REPAIR, AND REMOVE POLES, CABLE, OPTICAL FIBERS, WIRES, ELECTRICAL CONDUCTORS, CONDUITS, SUBWAYS, MANHOLES, AND OTHER FACILITIES AND FIXTURES OF A TELECOMMUNICATIONS SYSTEM IN THE CORPORATE LIMITS OF THE CITY OF FAIRFAX, VIRGINIA. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FAIRFAX, VIRGINIA: Article I. That there shall be granted in the mode prescribed by law for franchise grants and upon the conditions hereinafter specified, the rights and privileges in, over, along, on, and under the Public Rights-of-Way of the City of Fairfax, Virginia embodied in the following draft of an ordinance entitled: AN ORDINANCE GRANTING A FRANCHISE TO [INSERT NAME OF GRANTEE] ("GRANTEE") FOR THE TERM AND UPON THE CONDITIONS HEREIN STATED TO OCCUPY AND USE THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF FAIRFAX, VIRGINIA ("CITY") WITHIN ITS CORPORATE LIMITS TO INSTALL, MAINTAIN, UPGRADE, REPAIR, AND REMOVE POLES, CABLE, OPTICAL FIBERS, WIRES, ELECTRICAL CONDUCTORS, CONDUITS, SUBWAYS, MANHOLES, AND OTHER FACILITIES AND FIXTURES OF A TELECOMMUNICATIONS SYSTEM N THE CORPORATE LIMITS OF THE CITY. WHEREAS, the City has the authority to grant franchises and other authorizations for the use and occupancy of the Public Rights-of-Way (as hereinafter defined); and WHEREAS, the Grantee currently owns and operates a Telecommunications System (as hereinafter defined) in the City, and uses the Telecommunications System to provide Telecommunications Services (as hereinafter defined); and WHEREAS, the Grantee desires to obtain a franchise to use and occupy the Public Rights-of-Way for the purpose of constructing, maintaining, and repairing a Telecommunications System; and WHEREAS, the Public Rights-of-Way are a valuable public resource that have required and will continue to require substantial investment by the City; and WHEREAS, consistent with applicable law, the City desires to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the Public Rights-of-Way now and in the future, preserve adequate capacity for existing and future uses of the Public Rights-of-Way, and obtain fair and reasonable compensation for the use of the Public Rights-of-Way; and WHEREAS, the City of Fairfax intends to exercise, to the fullest extent permitted by applicable law, and in accordance with Sections 15.2-2100 and 56-462 of the Code of Virginia, its authority with respect to the regulation of the occupation and use of the Public Rights-of-Way in connection with the construction, maintenance, and repair of a Telecommunications System; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Fairfax, Virginia: 1. Definitions. The following terms, as used in this Ordinance, have the following meanings, with all terms defined in the singular to have the correlative meaning when used in the plural and vice versa: (a) "Abandonment" means the permanent cessation of all uses of a Telecommunications System. 1 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Fairfax, Virginia: 1. Definitions. The following terms, as used in this Ordinance, have the following meanings, with all terms defined in the singular to have the correlative meaning when used in the plural and vice versa: (a) "Abandonment" means the permanent cessation of all uses of a Telecommunications System. (b) "Better" means Facilities which the Grantee, in its discretion, favors over Like- for-Like Facilities. For example, as a general matter the City prefers underground Facilities to overhead Facilities. If the Grantee decides that it would also prefer to place certain overhead Facilities underground, its work will be performed on a "Better" basis. As another example, if the Grantee decides to replace existing poles with poles that are more aesthetically pleasing, its work will be performed on a"Better" basis. (c) "Cable Services" means "cable services" as defined in Section 602(5) of the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer and a a Competition Act of from 1992, time and (the Telecommunications Act of 1996 may "Cable Act"). In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "Cable Telecommunications Services" shall mean "cable services" ed in the such definition immediately prior becominh term no longer being defined in the Cable Act or inapplicable. (d) "City" means the City of Fairfax, Virginia. (e) "Customer" means any Person who uses the services of the Grantee in the corporate limits of the City. (f) "Effective Date" means the date on which this Ordinance will take effect, as determined by the City Council. (g) "Emergency Situation" means an event that is beyond the ability of the Grantee to control and which creates an imminent threat of danger to the public safety or interruption of Telecommunications Services, and includes, but is not necessarily limited to, severe weather conditions, strikes, labor disturbances, war or acts of war, insurrection, riots, acts of public enemy, fire, flood, or other act of God. poles, wires, electrical conductors, (h) "Facilities" means the cables, optical fiber, p conduits, subways, manholes, fixtures, appliances, and appurtenances that are owned, physically controlled, or physically maintained by the Grantee in, on, over, or under the Public Rights-of-Way that provide or are capable of providing Telecommunications Services, even if such Facilities provide or are capable of providing Cable Services. However, "Facilities" does not include such facilities used to provide wireless telecommunication services. (i) "FCC" means the Federal Communications Commission. (j) "Franchise" has the meaning set forth in this Ordinance. (k) "Grantee" means [INSERT NAME OF GRANTEE], a Virginia Public Service Corporation. (1) "Like-for-Like" means the installation or relocation of Facilities in a like or similar manner of construction when compared to previously installed facilities. For example, placement of Facilities above-ground using aerial construction in locations where existing Facilities are constructed above-ground (aerial-to-aerial) or the placement of Facilities underground in locations where existing Facilities are constructed underground are "Like-for- Like"; in the case of underground Facilities, conduit installations are to be replaced by conduit, and direct burial installations (where permitted) are to be replaced by direct burial. (m) "Ordinance" means this Ordinance, as amended, modified, or supplemented from time to time. (n) "Person" means an individual, a corporation, a partnership, an association, a trust, or any other entity or organization, including a governmental or political subdivision or an agency or instrumentality thereof. (o) "Public Rights-of-Way" means the streets, alleys, roads, bridges, sidewalks, lanes, courts, ways, and boulevards, including utility easements, waterways, or other public places used as public rights-of-way, as the same now or may hereafter exist,which are under the jurisdiction or control of the City. For the purposes of this Ordinance, the airwaves above the Public Rights-of-Way used for broadcast, cellular mobile radio service, satellite, or other wireless services shall be excluded from the requirements of this Ordinance. In addition, the term"Public Rights-of-Way" does not include Structures. 2 (p) "PROW Use Fee" means the Public Rights-of-Way Use Fee that the City of Fairfax is authorized to impose pursuant to Section 56-468.1 of the Code of Virginia, as amended. (q) "Single Point of Contact" means the person designated by the Grantee to fulfill the obligations set forth under Section 3 of this Ordinance. (r) "Structures" includes buildings, parks, parkways, signs, fences, tanks, poles, lines, fixtures, facilities, equipment, and appurtenances of the City of Fairfax. (s) "Surety Bond" has the meaning set forth in this Ordinance. (t) "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received by or through any electronic, cable, optical, microwave, or other medium or method in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. (u) "Telecommunications Services" means the offering of Telecommunications for a fee, regardless of the facilities used. The term "Telecommunications Services" shall not include Cable Services. (v) "Telecommunications System" means the plant, equipment, real property (including interests in real property), tangible and intangible personal property, cable, wires, optical fibers, amplifiers, antennas, and all other electronic devices and Facilities of a telecommunications provider located in, on, over, or under the Public Rights-of-Way. (w) "Term" has the meaning set forth in this Ordinance. 2. Grant of Franchise. The City grants the Grantee a franchise (the "Franchise") to occupy and use the Public Rights-of-Way to install, construct, maintain, upgrade, repair, and remove Facilities of its Telecommunications System subject to the conditions of this Ordinance. Grantee is not authorized to sublicense or sublease to any person the right to occupy or use the Public Rights-of-Way to install, construct, maintain, upgrade, repair, or remove Facilities or any other facilities for any purpose. 3. Single Point of Contact. (a) At all times during the Term of this Ordinance, the Grantee shall have designated a Single Point of Contact to respond to and address any and all comments, questions, requests, and other communications from the City within forty-eight (48) hours of receipt of same. If the Grantee at any time designates a different person as the Single Point of Contact, it shall notify the City in writing in advance by providing the name, title, address, direct-dial telephone number, cellular telephone number, and e-mail address of the new Single Point of Contact. (b) Pursuant to Section 3(a), Grantee hereby designates the following person as its Single of Point of Contact, and agrees that this person will fulfill the obligations set forth under Section 3(a): NAME TITLE ADDRESS TELEPHONE CELLULAR TELEPHONE E-MAIL ADDRESS 4. Term of Franchise. The Franchise commences on the Effective Date and expires fifteen (15) years after the effective date. 5. Nonexclusive Franchise. Nothing in this Ordinance affects the right of the City to grant any Person a franchise to occupy and use the Public Rights-of-Way to install, construct, maintain, upgrade, repair, and remove such Person's facilities, poles, wires, electrical conductors, optical fibers, conduits, subways, manholes, fixtures, appliances, and appurtenances for the purpose of providing Telecommunications Services or to engage in any other activity in the Public Rights-of-Way, provided that the exercise of such right will not require any existing grantee's facilities to be unreasonably interfered with or unreasonably relocated. Nothing in this Ordinance affects the right of the City to occupy and use the Public Rights-of-Way to install, construct, maintain, operate, upgrade, repair, and remove its facilities, poles, wires, electrical conductors, optical fibers, conduits, subways, manholes, fixtures, appliances, and appurtenances or to engage in any other activity in the Public Rights- of-Way, provided that the exercise of such right will not require any existing grantee's facilities to be unreasonably interfered with or unreasonably relocated. 6. Permits; Location of Facilities. 3 (a) Prior to commencing any activity involving the placing, constructing, installing, moving, or changing the location of, or otherwise altering any Facilities or digging in, cutting, or disturbing any Public Right-of-Way or other public property of the City, the Grantee shall (i) file plans with the Director of Public Works of the City detailing the location and nature of the proposed work and (ii) obtain a permit therefor. Except as provided in Section 6(c), any work performed by Grantee without a permit from the City in, over, along, on, or under the Public Rights-of-Way is a violation of this Ordinance and a trespass on the City's property. (b) The Facilities authorized by this Ordinance, whether in existence on the Effective Date hereof or coming into existence at some point thereafter, shall be at locations approved by the City that are reasonably suitable and convenient for the purposes of the Grantee and the City. Except where approval of the State Corporation Commission is required by law, the location of proposed Facilities shall be subject to review by the City Manager or his designee with the right on the part of the Grantee to appeal from his decision to the City Council. The decision of the City Council on said appeal shall be final and binding as to the location of such Facilities. In addition, any permission provided pursuant to this Section 6 shall be conditioned upon the Grantee's compliance with the provisions, terms, conditions, and limitations of this Ordinance and with such other reasonable and lawful provisions, terms, conditions, and limitations which the City determines are necessary in order to preserve, protect, or promote the safety of the public using the Public Rights-of-Way and other public property of the City, to prevent interference with or obstruction of the use of the Public Rights-of-Way and other public property of the City by the City, the public, or another public utility or public service corporation for their respective purposes and functions, or to preserve, protect, or promote the health, safety, and general welfare of the City and its citizens. (c) During an Emergency Situation, the Grantee may take all reasonable measures to restore service and alter its Facilities to ensure the safety of the citizens of the City; provided, however, that the Grantee shall notify the Director of Public Works of the City of any such actions as soon as is reasonably possible but in no event more than seventy-two (72) hours after such actions are taken. In providing such notice, the Grantee shall describe the location and nature of all such actions taken. (d) Upon the completion of any new Facilities, the Grantee shall provide the City, upon request and at no cost to the City, copies of any as-built diagrams of such new Facilities prepared by the Grantee in the normal course of its business. 7. Public Works and Relocation of Equipment. (a) Whenever the City, in its sole discretion, determines that Facilities disturb, interfere, or conflict with the operation, relocation, improvement, repair, construction, or maintenance of present or future Public Rights-of-Way, or public works (including but not limited to storm sewers, sanitary sewers, and street lights), or other public property of the City, the City may require by written notification that any Facilities of Grantee be removed or relocated. Within thirty (30) days after receipt of notification unless the City Manager for good cause extends such time, Grantee shall submit to the City Manager a design plan and work schedule for removing or relocating the Facilities. Grantee shall complete the removal or relocation within ninety (90) days after submitting its design plan and work schedule to the City Manager. Grantee shall bear all costs of removal and relocation and shall install any new or additional Facilities on a Like-for-Like or Better basis; provided, however, that in the event that the City specifically requests that the Grantee install Facilities that are more expensive than Like-for-Like Facilities, the City shall bear the cost of removal or relocation, but only by the amount by which the cost of the more expensive Facilities exceeds the cost of Like-for- Like Facilities. The City shall provide, at no cost to Grantee, permits and alternative space in the Public Rights-of-Way for such relocation of Facilities, provided that (i) such alternative space need not be in the exact same Public Rights-of-Way but shall be in reasonable proximity to the previous location; and (ii) such space shall be reasonably economically and technologically feasible for the relocation of such Facilities. The City shall reimburse the Grantee for any relocation expense if such reimbursement is required by Section 56-468.2 of the Code of Virginia, as amended, or any other applicable law. (b) If Grantee does not complete removal or relocation within one hundred-twenty (120) days after receiving notification from the City, then the City may, after giving at least fifteen (15) days' written notice to Grantee, take such actions at Grantee's expense as are necessary to effect such removal or relocation. In the event the City effects the removal or relocation of any Facilities pursuant to this Section 7, the City shall not be liable to the Grantee for any damages incurred by Grantee that result from such removal or relocation. In 4 addition, in the event the City effects the removal or relocation of any Facilities pursuant to this Section 7, Grantee shall indemnify the City for, and hold the City harmless from, any and all losses, damages,judgments, liabilities, costs, and expenses arising from or based upon the claims of third parties who allege personal injury, property damage, or other loss caused, in whole or in part, by the removal or relocation; provided, that Grantee shall not be required to indemnify and hold the City harmless to the extent that the loss incurred by a third party is caused by the City's negligence. (c) The Grantee shall be entitled to any state or federal funds made available to the City in conjunction with the relocation or protection of work (i.e., protection of Grantee Facilities from harm or damage when the City is working in the Public Right-of-Way). (d) Upon request, the Grantee shall be given access to the street plans and specifications, and any proposed modifications to such, in the possession of the City. (e) The reference in Section 5.5 of the 2005 Cable Franchise Agreement by and between the City and the Grantee to Section 4 of the 1982 telecommunications franchise between the City and [INSERT PRIOR NAME OF GRANTEE] (the prior name of the Grantee) is hereby amended to refer to Section 7 of this Ordinance. 8. Aesthetic, Third Party. or Competitive Relocation. If the City or any Person requests that the Grantee relocate its Facilities for aesthetic purposes, for the benefit of a third party (including but not limited to a private developer), or for the benefit of the City to compete as a telecommunications provider, then the City or Person requesting the relocation shall reimburse the Grantee for all such relocation costs in accordance with Grantee's tariffs. 9. Temporary Raising and Lowering of Wires. The Grantee shall, upon sixty (60) days' prior written notice by the City or any Person holding a permit to move any Structure, or within the time that is reasonable under the circumstances, temporarily raise or lower its cables and wires or otherwise move Facilities to permit the moving of said Structure. Pursuant to tariff, the Grantee may impose a reasonable charge on any Person other than the City for any such movement of its Facilities and may require payment of such charge prior to such movement. 10. Trees, Plants. and Other Vegetation. In placing, constructing, installing, improving, maintaining, repairing, and using the Facilities authorized by this Ordinance, the Grantee shall avoid all unnecessary damage to trees in the Public Rights-of-Way and shall not cut or otherwise injure said trees to any greater extent than is reasonably necessary. 11. Restoration and Protection of City Property. In the event that the Grantee, in the course of placing, constructing, installing, improving, maintaining, repairing, or using any of its Facilities, disturbs or causes damage to any Public Right-of-Way, Structure, or other public property of the City, the Grantee shall immediately notify the Director of Public Works of the damage and shall, at its own cost and expense, replace, repair, or restore the damaged property to at least as good condition as it was in immediately prior to the damage. In Emergency Situations, the Grantee may make partial or temporary repairs without having notified the Director of Public Works of the damage. The Director of Public Works shall give final approval of the condition of such Public Rights-of-Way, Structures, and other public property of the City after restoration. If the Grantee does not complete such replacement or repair within thirty (30) days after notice by the City to the Grantee, the City may undertake such replacement or repair and the Grantee shall reimburse the City for any and all reasonable costs of the same. In the event the City undertakes repair or replacement work pursuant to this Section 11, the City shall not be liable to the Grantee for any damages incurred by the Grantee that may result from such work, except for damage resulting from the negligent acts or omissions of the City, its officers, agents, employees, or contractors. In addition, in the event the City undertakes repair or replacement work pursuant to this Section 11, the Grantee shall indemnify the City for, and hold the City harmless from, any and all losses, damages, judgments, liabilities, costs, and expenses arising from or based upon the claims of third parties who allege personal injury, property damage, or other loss caused, in whole or in part, by the work; provided, that Grantee shall not be required to indemnify and hold the City harmless to the extent that the loss incurred by a third party is caused by the City's negligence. 12. Use of Grantee's Facilities. (a) Grantee shall, when so requested by the City Manager, permit its poles and other overhead structures to be used by the City, provided the City pays for the cost of any make- ready work (i.e., work that Grantee must perform, such as moving a cable, terminal, or hub, in order to enable the City to make an attachment to Grantee's poles) associated with or required by the City's placing thereon of any traffic lighting, cable for traffic lighting, signs, fire and police alarms, telephone wires, and other appliances which may be necessary for the exclusive 5 use of the police or fire department of the City. Such use by the City shall not interfere with the proper use of said poles and other overhead structures by Grantee. The location and character of the City's traffic lighting, cable for traffic lighting, signs, fire and police alarms, telephone wires, and other appliances shall be subject to the approval of Grantee. The City shall indemnify and save harmless Grantee from any and all loss, damage, cost, or expense to or which may be incurred by the Grantee, or to which it may be subjected by reason of, or as a result of, the use of said poles and other overhead structures by the City as provided herein. (b) Prior to allowing any Person other than the City, including but not limited to any provider of cellular telecommunications services, to place any facilities or equipment on or otherwise use Grantee's Facilities located in the Public Rights-of-Way, Grantee shall require the Person to obtain permission from the City to occupy and use the Public Rights-of-Way. 13. Protection of Property of Other Utility Services. The Grantee shall take all prudent action to avoid damage or injury to pipes, cables, fixtures, and installations of other utility services, particularly those installations whose disruption can cause hazards or danger to persons or property. In the event such damage or injury occurs, the Grantee shall immediately notify such other affected utility and the City Manager or his designee and shall cooperate and contribute its capabilities to the extent necessary to remove any hazards and repair any damage. 14. Undergrounding. (a) Except as provided in Section 14(b), if the City determines that any of Grantee's Facilities should be placed underground, the City shall, at its expense, construct and install to Grantee's specifications the conduits, ductways, manholes, and handholes necessary to facilitate the undergrounding of the Grantee's existing or proposed overhead Facilities, and shall reimburse Grantee for Grantee's costs of designing, removing, and relocating such portions of its existing or proposed Facilities underground. In such event, Grantee shall openly and fully disclose the cost of such work to the City within a reasonable time after receiving the City's request for such information. The City will obtain or cause to be obtained, without charge to the Grantee, suitable public or private easements as may be required by Grantee for such underground Facilities. (b) Where financially and technically reasonable and consistent with Grantee's tariffs, Grantee shall install any new Facilities underground in locations serving new subdivisions or other areas within the City where Facilities currently do not exist, to the extent that the City makes the same undergrounding requirement applicable to all other franchisees authorized to occupy and use the Public Rights-of-Way. Existing overhead Facilities of the Grantee may remain overhead when repaired, upgraded, or increased in capacity. (c) In the event that the Grantee undertakes any undergrounding of its Facilities, the Grantee shall cooperate with the City and other utilities whose facilities are collocated on existing poles or other structures to ensure that those facilities are properly removed and relocated. 15. Development. Before the City approves a site plan for any new development, Grantee shall review the site plan and conceptually agree to the proposed location and type of proposed Facilities of the Grantee that will serve the development. After reviewing and conceptually agreeing to the site plan, Grantee shall return the site plan to the City and provide a Letter to Serve (i.e., a letter stating that Grantee will serve a facility as long as outlined criteria within the letter are met) to the Requestor (i.e., the entity which is requesting the Letter to Serve. It can be the City, or a developer, builder, homeowner, etc.). Grantee shall use its best efforts to fulfill all of its obligations under this Section 15 within thirty (30) days after receiving the site plan. Site Plans should come to Grantee from the Developer(s). 16. Public Rights-of-Way Closings. Nothing in this Ordinance waives or releases the right of the City in and to the Public Rights-of-Way. If all or part of any Public Rights-of- Way is eliminated, discontinued, closed, de-mapped, or abandoned, the Franchise shall cease with respect to such Public Rights-of-Way upon the later to occur of(a) the effective date that such Public Rights-of-Way become eliminated, discontinued, closed, de-mapped, or abandoned and any conditions specified by the City are met; or (b) in the case of any transfer of title to such Public Rights-of-Way to a Person, the closing date of such transfer. The City shall condition its consent to the elimination, discontinuance, closing, de-mapping, or abandoning on the agreement of any Person to (i) grant an easement with rights of ingress and egress, at no additional charge, to the Grantee providing the right to continue to occupy and use the Public Rights-of-Way and/or (ii) reimburse the Grantee for the reasonable costs of supporting, protecting, or relocating the affected Facilities. 17. Compensation/PROW Use Fee. The City has imposed a PROW Use Fee in accordance with Section 56-468.1 of the Code of Virginia. The Grantee shall be obligated to 6 pay the PROW Use Fee and any other lawful fee charged by the City, and the City reserves the right to impose any fee or payment as may be allowed by federal or state law for the occupation and use of the Public Rights-of-Way. The City has provided the Grantee appropriate notice of the PROW Use Fee as required by Section 56-468.1 of the Code of Virginia. If the PROW Use Fee is eliminated, discontinued, preempted, or otherwise is declared or becomes invalid, the City shall in good faith determine fair and reasonable compensation to the City for use of the Public Rights-of-Way by the Grantee for Facilities to provide Telecommunications Services. 18. No Credits or Deductions. The compensation and other payments to be made: (a) shall not be deemed to be in the nature of a tax; and (b) except as may be otherwise provided by Section 56-468.1 of the Code of Virginia, as amended, shall be in addition to any and all taxes or other fees or charges that the Grantee shall be required to pay to the City or to any state or federal agency or authority, all of which shall be separate and distinct obligations of the Grantee. 19. Reservation of Rights. No acceptance by the City of any payment shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount, nor shall such acceptance of any payment be construed as a release of any claim that the City may have for further or additional sums payable under the provisions of this Ordinance. All amounts paid shall be subject to audit and recomputation by the City. 20. Continuing Obligation and Holdover. If the Grantee continues to use Facilities in the Public Rights-of-Way to provide Telecommunications Services after the Term, then the Grantee shall continue to comply with all applicable provisions of this Ordinance, including, without limitation, all compensation and other payment provisions of this Ordinance, throughout the period of such continued use, provided that any such continued operation shall in no way be construed as a renewal or other extension of this Ordinance or the Franchise, nor as a limitation on the remedies, if any, available to the City as a result of such continued operation after the term, including, but not limited to, damages and restitution. If this Ordinance terminates for any reason whatsoever (other than a judicial or legislative determination that the compensation set forth in Section 17 of this Ordinance is invalid) and the Grantee fails to cease using the Facilities in the Public Rights-of-Way to provide Telecommunications Services, the City, in addition to all other remedies available to it under this Ordinance or by law, shall be entitled to receive all payments it is entitled to receive under this Ordinance, including, but not limited to, the compensation set forth in Section 17 of this Ordinance for so long as the Grantee has Facilities in the Public Rights-of-Way. 21. Quality. All work involved in the installation, maintenance, upgrade, repair, and removal of Facilities shall be performed in a safe, thorough, and reliable manner in accordance with industry, professional, state, and federal mandated standards and using materials of good and durable quality. If at any time it is determined by the City or any other agency or authority of competent jurisdiction that any Facilities are harmful to the health or safety of any Person or property, then the Grantee shall, at its own cost and expense, promptly correct all such conditions. 22. Liability Limitation. Except as set forth herein, neither the City nor its officials, employees, agents, attorneys, consultants, or independent contractors shall be responsible to the Grantee for any liability as a result of or in connection with the protection, breaking through, movement, removal, alteration, or relocation of any Facilities by or on behalf of the Grantee or the City in accordance with this Ordinance and in connection with any emergency related to the safety, health, and welfare of the public. However, nothing in this Section 22 shall waive any rights that the Grantee has against the City for any willful misconduct or negligent acts or omissions of the City. 23. No Obstruction. Except in the case of an Emergency Situation, in connection with the installation, maintenance, upgrade, repair, or removal of Facilities, the Grantee shall not obstruct the Public Rights-of-Way or any other public property, or other traffic to, from, or within the corporate limits of the City without having first obtained a permit from the City. Facilities of the Grantee in the Public Rights-of-Way shall be located so as to cause minimum interference with any use of the Public Rights-of-Way and adjoining property. 24. Safety Precautions. Grantee shall maintain in good and safe condition all Facilities it places within the Public Rights-of-Way. The Grantee shall, at its own cost and expense, undertake to prevent accidents at its work sites in, at, or on the Public Rights-of-Way, including the placing and maintenance of proper guards, fences, barricades, watchmen, and suitable and sufficient lighting, in accordance with federal and state law. 25. Emergency Activity. The City may, at any time, in case of fire, disaster, or other Emergency Situation, as determined by the City in its sole reasonable discretion, cut or move 7 Facilities of the Grantee, in which event the City shall not incur any liability to the Grantee unless such liability is due to the negligence or willful misconduct of the City. The City will make every reasonable effort to consult with the Grantee prior to any such cutting or movement of Facilities and the Grantee shall be given the opportunity to perform such work itself The City shall have the obligation to protect the Grantee's Facilities to the maximum extent reasonable under the circumstances. Absent the City's negligence or willful misconduct, all costs to repair or replace such Facilities shall be borne by the Grantee. 26. Use of City Structures. This Ordinance does not grant to the Grantee a right to use City-owned Structures. The terms and conditions of any use of City-owned Structures by the Grantee shall be set forth in a separate ordinance, agreement, lease, or other document, as appropriate. 27. Compliance with Laws. The Grantee shall comply with all lawful local laws, rules, regulations, orders, and other directives of the City issued pursuant to this Ordinance or with respect to the City's management of the Public Rights-of-Way, provided they are applied in an equitable and nondiscriminatory fashion to all users of the Public Rights-of-Way. The Grantee shall have the sole responsibility for obtaining all permits, as well as any licenses and other forms of approval or authorization that the City now requires or may hereafter require, prior to commencing any work involving the installation, maintenance, upgrade, repair, or removal of Facilities in, on, over, and under the Public Rights-of-Way. The City has the right to oversee, regulate, and inspect any such work in accordance with the provisions of this Ordinance and applicable law. The City reserves the right to adopt or issue such rules, regulations, orders, or other directives governing the Grantee or the Grantee's Facilities as it shall find necessary or appropriate in the lawful exercise of its police power, and such other lawful orders as the City shall find necessary or appropriate relating to management of the Public Rights-of-Way. No rule, regulation, order, or other directive issued pursuant to this Section 27 shall constitute an amendment to this Ordinance. 28. Books and Records. To the extent necessary to determine the Grantee's compliance with this Ordinance or to carry out the City's authority to manage the Public Rights-of-Way, the Grantee shall make available to the City for inspection, examination, and/or audit within thirty (30) days' notice to the Grantee, complete and accurate books of account, records, documents, and other information as the City may reasonably need with respect to the Telecommunications System and the Facilities, including, without limitation, books of account, records, documents, and other information adequate to enable the Grantee to demonstrate that, at all times throughout the Term, it is and has been in compliance with each term and condition of this Ordinance. 29. Compliance Audits. The City may conduct compliance audits concerning Grantee's compliance with the terms and conditions of this Ordinance at any time during the Term, provided that the City gives the Grantee written notice sixty (60) days in advance of the commencement of any such compliance audit, and provided also that such an audit has not taken place within the previous twenty-four (24) months. 30. Insurance-Specifications. (a) Throughout the Term, the Grantee shall, at its own expense, maintain a liability insurance policy or policies in a form reasonably acceptable to the City. At the request of the City, Grantee shall provide a certificate of liability insurance demonstrating that the Grantee is maintaining the insurance requirements of this Section 30. Such policy or policies shall be issued by companies duly authorized or permitted to do business in the Commonwealth of Virginia. Such policy or policies shall insure (a) the Grantee and (b) include the City and its officials, boards, commissions, Council, elected officials, and employees against claims for bodily injury or damage to property that may arise out of the Grantee's occupation and use of the Public Rights-of-Way under this Ordinance in the minimum combined amount of Five Million Dollars ($5,000,000) combined single limit per occurrence for bodily injury and property damage, and Workers' Compensation insurance, as required by Virginia law. The foregoing minimum amount may be attained by a combination of primary and umbrella/excess liability coverage. The City and its officials, boards, commissions, Council, elected officials, and employees shall be included as an additional insured as their interest may appear, excluding Workers' Compensation and employer's liability. (b) The provisions of this Section 30 shall not be construed to limit the provisions of Section 32 in any manner. 31. Surety Bond. (a) Upon acceptance of this Ordinance, the Grantee shall furnish a Surety Bond, made payable to the City, in an amount not less than Two Hundred Fifty Thousand Dollars ($250,000). The Surety Bond shall be written by a corporate surety or bank reasonably 8 acceptable to the City and authorized to do business in the Commonwealth of Virginia. Within sixty (60) days after the date of any notice of cancellation of the Surety Bond, the Grantee shall obtain and deposit with the City a replacement surety bond that complies with the requirements of this Section 31 and that is reasonably acceptable to the City Attorney. Such replacement surety bond shall show continuous coverage as required by this Section 31 from the effective date of cancellation of the prior surety bond forward. The Surety Bond will be in the form of Exhibit 1 attached hereto. (b) In addition to the Surety Bond, the Director of Public Works of the City may also require the Grantee to submit additional surety in connection with specific construction, maintenance, or other projects undertaken by the Grantee, in accordance with applicable law and the City's standard permitting procedures. The Grantee shall only be required to maintain such additional surety for the duration of the specific construction, maintenance, or other project. (c) At any time during the Term, the City may require the Grantee to increase the amount of the Surety Bond if the City finds that new risks or other factors applicable to the Grantee's activities in the Public Rights-of-Way exist that reasonably justify a change in the amount of the Surety Bond. Such new facts may include, but are not limited to, such matters as material changes in the Grantee's activities in the Public Rights-of-Way; material changes in the amount and location of Facilities; activities that require restoration resulting from activities by the Grantee located within the Public Rights-of-Way; the Grantee's record of repeated non-compliance with the terms and conditions of this Ordinance; and material changes in the amount and nature of construction, maintenance, and other activities to be performed by the Grantee in the Public Rights-of-Way pursuant to this Agreement. (d) The purpose of the Surety Bond is to serve as security for: (i) The faithful performance by the Grantee of all terms, conditions, and obligations of this Ordinance; (ii) Any expenditure, damage, cost, or loss incurred by the City arising out of the Grantee's failure to comply with its obligations pursuant to this Ordinance and/or all rules, regulations, orders, permits, and other directives of the City relating to the Public Rights-of-Way; (iii) The removal of Facilities from the Public Rights-of-Way at the termination of this Ordinance, at the election of the City, pursuant to Section 34 of this Ordinance; and (iv) Any loss or damage to the Public Rights-of-Way or any property of the City during the installation, upgrade, construction, repair, maintenance, or removal of Facilities. (e) The City shall provide the Grantee at least ten (10) days' notice prior to making any withdrawal from the Surety Bond, provided, however, that the City shall not make any withdrawals by reason of any breach for which the Grantee has not been given notice and opportunity to cure prior to the notice required by this Section 31 or any other provision of this Ordinance. The withdrawal of any amount from the Surety Bond shall constitute a credit against the amount of the applicable liability of the Grantee to the City, but only to the extent of such withdrawal. The City shall provide notice to the Grantee that the City has withdrawn any amount from the Surety Bond within thirty (30) days after the date of such withdrawal. (f) Within thirty (30) days after receipt of notice from the City that any amount has been withdrawn from the Surety Bond, the Grantee shall restore the Surety Bond to the amount specified in this Ordinance, provided that if a court finally determines that such withdrawal by the City was improper, the City shall refund the improperly withdrawn amount to the Surety Bond such that the balance in the Surety Bond shall not exceed the amount specified in this Ordinance. (g) The obligation to perform and the liability of the Grantee pursuant to this Ordinance shall not be limited by the acceptance of the Surety Bond required by this Section 31. 32. Indemnification of City. (a) Grantee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the City and its officers, employees, and agents from and against any and all losses and any and all claims, suits, actions, liability, and judgments for damages or other relief arising out of the installation, construction, operation, or maintenance of the Grantee's Facilities, including but not limited to any claim for bodily injury or property damage. The indemnity obligation of the Grantee under this Section 32 shall include, but is not limited to, providing legal representation and otherwise defending the City and its officers, employees, 9 and agents against any claim, suit, or action covered by this indemnification. The City shall provide the Grantee with prompt notice of any loss, claim, suit, or action covered by this indemnification. (b) If a suit or action for which the City or its officers, employees, or agents are entitled to be indemnified and held harmless under Section 32(a) shall be brought against the City and/or one or more of its officers, employees, or agents, either individually or jointly with the Grantee, the Grantee shall defend, indemnify, and hold harmless the City and the sued officers, employees, and agents at the sole cost and expense of the Grantee. The City shall promptly provide the Grantee with written notice of any such suit or action. The Grantee shall conduct the defense of such suit or action. The City may also participate in this defense directly, at its own expense. (c) If a final judgment is obtained against the City or one or more of its officers, employees, or agents in a suit or action, either independently or jointly with Grantee, for which the City and its officers, employees, and agents are entitled to be indemnified and held harmless under this Section 32, Grantee shall pay the full amount of every judgment, including all costs and attorneys' fees, entered against the City and any of its officers, employees, and agents. (d) The Grantee shall be entitled to settle a claim brought in a suit or action for which the City and its officers, employees, and agents are entitled to be indemnified and held harmless under Section 32(a), provided that the Grantee must obtain the prior written approval of the City for any settlement of such claims against the City, which approval shall not be unreasonably withheld or unreasonably delayed. (e) The indemnities in this Section 32 shall survive the expiration or earlier termination of this Ordinance. 33. Transfer of Franchise. Neither the Franchise nor any rights or obligations of the Grantee pursuant to this Ordinance, nor any guaranty of the performance of the Grantee's obligations pursuant to this Ordinance, shall be assigned, sold, or transferred in any manner, in whole or in part, without prior written notice to and approval from the City, which approval shall not be unreasonably withheld. 34. Enforcement and Termination. (a) In the event that Grantee fails to perform any of its obligations under this Ordinance, and such failure is not the result of circumstances beyond the Grantee's control, the City may impose a monetary penalty of up to $500 per day for as many days as the violation continues; provided, however, that the City shall not impose any such monetary penalty unless it has provided the Grantee notice of its failure to perform and the Grantee has not, within thirty (30) days after receiving such notice (or such longer time as may be reasonable under the circumstances), corrected such failure to perform. (b) In addition, in the event that the City believes that the Grantee has failed to perform any of its obligations under this Ordinance and the Grantee fails to remedy within ninety (90) days after receiving notice from the City, the City may hold a public hearing after providing written notice of the hearing to the Grantee. If, at the conclusion of such hearing, the Council determines that the Grantee is in breach of this Ordinance and that the breach is not the result of circumstances beyond the Grantee's control, the Council may terminate this Ordinance and the Grantee shall have no further rights, privileges, or authority hereunder. (c) The availability of the remedies specified in subsections (a) and (b) of this Section 34 shall not preclude either party from seeking a writ of mandamus in the circuit court for the City of Fairfax pursuant to Section 15.2-2106 of the Code of Virginia, or any successor statute, or from bringing any other suit or action which such party would be entitled to bring, at law or in equity, as provided by law. (d) The failure of either party to at any time require performance by the other party of any provision hereof shall in no way affect the rights of such party thereafter to enforce the same. Nor shall the waiver by either party of any breach of any provision hereof be taken as a waiver of any succeeding breach of such provision or of the provision itself 35. Entire Ordinance. This Ordinance embodies the entire understanding and agreement of the City and the Grantee with respect to the subject matter hereof and supersedes all prior representations, agreements, and understandings, whether oral or written, between the City and the Grantee with respect to the subject matter hereof, including, without limitation, all prior drafts of this Ordinance and any and all written or oral statements or representations by any official, employee, agent, attorney, consultant, or independent contractor of the City or the Grantee. 36. Delays and Failures Beyond Control of Grantee. Notwithstanding any other provision of this Ordinance, the Grantee shall not be liable for delay in performance of, or failure to 10 perform, in whole or in part, its obligations pursuant to this Ordinance due to an Emergency Situation, where the Grantee has exercised all due care in the prevention thereof, to the extent that such causes or other events are beyond the control of the Grantee. To the extent such delay in performance or failure to perform affects only part of the Grantee's ability to perform, the Grantee shall perform to the maximum extent it is able to do so. In all cases the Grantee shall take all steps within its power, in as expeditious a manner as possible, to correct such cause(s). 37. Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments, designations, or other direction or communication hereunder, when made by the City, shall be sent to the Single Point of Contact pursuant to Section 3. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments, designations, or other direction or communication hereunder, when made by the Grantee, shall be sent in writing to the following address: Mr. David Summers Director of Public Works City Hall Annex, Room 200 10455 Armstrong Street Telephone: (703) 385-7846 Cellular Telephone: (571) 722-4874 E-mail: david.summers @fairfaxva.gov 38. Organization, Standing, Power, Authorization, and Enforceability. The Grantee is a Public Service Corporation duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, and is duly authorized to do business in the City. The Grantee has all requisite power and authority to execute, deliver, and perform this Ordinance and any other agreements which may be entered into in connection with or as contemplated hereby. 39. Binding Effect. This Ordinance shall be binding upon and inure to the benefit of the City and the Grantee and their respective permitted successors, transferees, and assigns. 40. Headings; Other Terms. The headings contained in this Ordinance are to facilitate reference only, do not form a part of this Ordinance, and shall not in any way affect the construction or interpretation hereof Terms such as "hereby," "herein," "hereof," "hereinafter," and "hereto" refer to this Ordinance as a whole and not to the particular sentence or paragraph where they appear, unless the context otherwise requires. The term "may" is permissive; the terms "shall" and "will" are mandatory. All references to any gender shall be deemed to include all others, as the context may require. Terms used in the plural include the singular, and vice versa, unless the context otherwise requires. 41. No Third-Party Beneficiary Rights. Nothing in this Ordinance is intended to interfere with any tariffs, contracts, or other arrangements between the Grantee and a third party or to create any third-party beneficiary rights. 42. Delegation of City Rights. The City reserves the right to delegate and redelegate, from time to time, any of its rights or obligations under this Ordinance to any body, organization, or official of the City. Upon any such delegation or redelegation, references to "City" in this Ordinance shall refer to the body, organization, or official to whom such delegation or redelegation has been made. Any such delegation or redelegation by the City, no matter how often made, shall not be deemed an amendment to this Ordinance or require any consent of the Grantee. Article II. That upon approval of this Ordinance by the Council, it shall be the duty of the Clerk to cause to be advertised once a week for two successive weeks, in some newspaper of general circulation in the City, a descriptive notice of the proposed ordinance, and in addition the Clerk shall, by such advertisement, invite bids for the privileges and rights proposed to be granted by this Ordinance, which bids shall be in writing and shall be delivered to the presiding officer of the City Council in open session at the day and hour of the next regular meeting of the City Council to be held next after such advertisement is completed, which bids shall then be presented to the City Council by the presiding officer to be dealt with and acted upon in the manner prescribed by law for franchise grants. Such advertisement shall expressly reserve the right to reject any and all bids, and the successful bidder shall be required to pay all costs of advertising the franchise in addition to the sum bid by it. Article III. This Ordinance shall be in force from its passage. ADOPTED by the City Council of the City of Fairfax, Virginia this 23rd day of April, 2013. 11 Car,; SaAA. Mayor 5703 Date ATTEST: City Clerk Votes Councilman DeMarco Aye Councilman Drummond Aye Councilman Greenfield Aye Councilman Meyer Aye Councilmember Schmidt Aye Councilman Stombres Aye 12 EXHIBIT 1 TELECOMMUNICATIONS FRANCHISE BOND KNOWN ALL MEN BY THESE PRESENTS, that we, [INSERT NAME OF GRANTEE], as Principal, and [INSERT NAME OF SURETY], a corporation duly organized under the laws of the State of [INSERT NAME OF STATE], as Surety, are held and firmly bound unto the City of Fairfax, Virginia, as Obligee, in the sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) , for the payment of which sum well and truly to be made, we the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns,jointly and severally, firmly by these presents. WHEREAS, the Principal and the Obligee have entered into a written agreement, reflected in an Ordinance dated May 14, 2013 ("Ordinance"), wherein the Obligee has granted a franchise to the Principal to use its public rights-of-way for the purpose of operating a telecommunications system; and wherein the Principal has agreed to faithfully perform all of the obligations as detailed in the Ordinance, which is hereby referred to and made a part hereof as if fully set forth herein; and wherein the Principal has agreed to furnish this bond to serve as security for the faithful performance by the Principal of all terms, conditions, and obligations of said Ordinance; NOW, THEREFORE, the condition of this obligation is such that if the Principal shall faithfully comply with all of the terms and conditions of said Ordinance, then this obligation shall be null and void; otherwise to remain in full force and effect. PROVIDED, HOWEVER, this bond is executed by the Surety and accepted by the Obligee subject to the following conditions: 1. No assignment of this bond by the Obligee shall be effective without the written consent of the Surety. No assignment of this bond by the Surety shall be effective without the written consent of the Obligee. 2. This obligation may be terminated by the Surety by giving a thirty (30) day advance written notice to the Obligee, such notice to be sent by registered mail. Such termination shall not affect liability incurred under this obligation prior to the effective date of such termination. 3. PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery hereunder that, in the event of default by the Principal, Obligee shall deliver to Surety a written statement of the details of such default within 30 days after the Obligee shall learn same, such written statement to be delivered by certified mail to the address of Surety as stated herein. The Surety shall be obligated to perform Principal's obligation within sixty (60) days after Surety's receipt of such written statement. For purposes of this paragraph, "default" means the failure of the Principal to cure a breach or violation of the Ordinance after having received prior notice from the Obligee and an opportunity to cure. 4. No action, suit or proceeding shall be had or maintained against the Surety on this bond unless the same be brought or instituted within one year after the termination or release of this bond. This bond shall be effective May , 2013 and shall remain in full force and effect thereafter for a period of one year and will automatically extend for additional one year periods from the expiration date hereof, or any future expiration date, unless the Surety provides the Obligee not less than thirty (30) days advance written notice of its intent not to renew this Bond or unless the Bond is earlier canceled pursuant to the following. This bond may be canceled at any time upon thirty (30) days advance written notice from the Surety to the Obligee. Neither non-renewal by the Surety, nor failure or inability of the Principal to file a replacement bond, shall constitute loss of the Obligee recoverable under this bond. Regardless of the number of years that this bond is continued by the Surety, the liability hereunder for 13 any single claim by the Obligee shall in no event exceed the penal sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). IN WITNESS WHEREOF, said Principal and said Surety have caused these presents to be executed and their seals affixed this day of May, 2013. PRINCIPAL: SURETY: Title , Attorney-in-Fact 14